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Lacunae in the harassment law

As the MeToo movement has gained momentum, an increasing number of women have mustered the courage to speak up against instances of sexual harassment at the hands of employers, co-workers, teachers, doctors and family members, seeking the protection and condemnation of the law.

Yet, the law doesn’t provide the protection that is warranted. As a lawyer, when approached for advice, I have found it difficult to manoeuvre the fact patterns of harassment within narrowly and arbitrarily defined categories in a law – the Punjab Protection of Women Against Harassment at the Workplace Act, 2010 (and its federal and provincial equivalents) – that provides selective protection within a problematic scheme of enforcement.

I have earlier written about the shortcomings of the 2010 act and, as part of an advisory panel, submitted my recommendations to reform the law to the Office of the Ombudsperson – unsurprisingly with little consequence. In the face of current happenings, I find it important to reiterate and reemphasise the need to reform the law.

The 2010 act lays down a framework of civil remedies for claims of “harassment” by “an employee” at the “workplace”. The meanings assigned to the aforementioned words/phrases determine the scope of protection that the law accords. Although the definition of harassment is wide enough to cover a range of unwanted sexual behaviour, it doesn’t include those forms of sexual conduct that the law has elsewhere criminalised: stalking, voyeurism, and morphing or electronically displaying/transmitting information to injure a person’s reputation. The exclusion seems arbitrary.

What is possibly more problematic is the definition accorded to the workplace as a ‘premises’ or area of work where an employer or an organisation operate. The act conceives of an employer and an organisation as essentially operating within the formal, organised sector in government departments, corporations, educational institutions, hospitals, commercial and industrial establishments, and registered civil society institutions. However, the majority of women in the labour force in Pakistan work in the unorganised, informal sector.

According to a study conducted in 2015, 22 million workers are employed in the informal sector in Pakistan (‘Women in Pakistan’s Informal Urban Informal Economy’), a large proportion of which are women. Female domestic workers and home-based workers are particularly vulnerable to abuse and sexual harassment due to the lack of regulation within the informal sector. The 2010 legislation, however, leaves such women entirely unprotected.

In a recent consultation that I attended on the drafting of the Punjab Domestic Workers Act, 2017, there was a consensus on the need to expand the scope of the workplace, as defined in the 2010 act, to include dwelling homes and, in doing so, accord protection to female domestic workers.

The strict interpretation of an “employee” as defined under the act has also meant that a large number of victims of sexual harassment are unable to seek redress under the 2010 act. In a recent decision, the Islamabad High Court held that an ex-employee doesn’t have the standing to institute a complaint of sexual harassment under the federal equivalent of the 2010 law on the grounds that the “intention of the legislature was that only an employee who is in employment of an employer can prefer a complaint of sexual harassment either before the inquiry committee or the Ombudsperson” (2018 MLD 327 ‘Syed Mazhar Hussain v President of Pakistan’).

Could the law have intended that an employer be absolved from the responsibility of extending protection or providing redressal to an ex-employee who was subjected to sexual harassment during the course of her employment and may since have resigned or been terminated from service? The law surely cannot be so irrational or oppressive. In some instances, the ombudsperson has also relied on exemption clauses in employment contracts to refuse jurisdiction on the grounds of the absence of an employment relationship.

The objective of the act, as articulated in its preamble, is the protection of women from harassment at the workplace. The interpretive approach adopted by the courts or the ombudsperson does not sit well with such purpose. In fact, a purposive interpretation of the preamble would demand protection from harassment of all women who participate within the environment of the workplace, including those who are not employees.

Convinced of such an interpretation, the federal ombudperson has, in one instance, held that since “an educational institution is an organisation within the meaning of section 2(l) of the act … female students being otherwise part of the university cannot be deprived of the remedy provided by the act if sexually harassed” (2013 MLD 225 In the matter of Appeal No 1(20)/FOS).

But such a position has not been followed across the board. It is also important to consider whether the law extends protection to female clients, such as medical patients, who enter a workplace to avail services. The act, or the jurisprudence developed with regard to it, doesn’t provide an answer.

The argument that women who do not fall in the category of employees cannot be brought within the scope of the act, which was promulgated with the specific purpose of regulating the workplace, may be reasonable. But the law should then provide an alternative civil remedy for sexual harassment. Our legal system may consider developing a broader tortious wrong of sexual harassment – as done by the Malaysian Federal Court in 2016.

The enforcement mechanism provided under the act is also weak. Section 3 of the legislation mandates the creation of inquiry committees in every organisation to inquire into complaints of harassment filed under the law. Many organisations, however, have still not instituted inquiry committees. The maximum penalty for a failure to implement the provisions of the act is a fine worth Rs100,000. It is questionable whether such a penalty is a sufficient deterrent against violation of the act.

The Indian legislation on the subject – The Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 – provides stronger consequences for non-compliance, such as the cancellation or withdrawal of a licence or any government approval essential for an organisation to carry on with its business. The remedies made available to a complainant under Section 4 of the 2010 act also appear to be lacking in comparison with the Indian legislation.

In addition to the power to order censure or the dismissal of an accused upon a finding of guilt, the internal complaints committee constituted under the Indian legislation is (in contrast to our law) also empowered to forward a complaint of harassment to the police to register a criminal case under Section 509 of the Indian Penal Code (the equivalent of Section 509 of the Pakistan Penal Code), where it is satisfied as to the existence of a prima facie case. This provision strengthens and reinforces the civil and criminal scheme of enforcement against sexual harassment.

The office of the ombudsperson, which is designated both as a forum of first instance and appeal under the 2010 act, is also problematic. The 2010 legislation grants the ombudsperson jurisdiction to determine legal rights, and powers of inspection and summoning witnesses vested in a court of law. Pursuant to Section 7 of the 2010 act, the ombudsperson, however, need not possess a legal background or training; educationists and retired members of the civil service can also be appointed to the post.

Questions have arisen regarding the competence of non-legal appointees to effectively deal with complaints of harassment. In order to repose more confidence in and aid the process of adjudication, it may be helpful to institute a panel of legally qualified members to advise the ombudsperson in his/her decision-making.

The legislature needs to reassess and reform the scheme of the 2010 act in order to rationalise it with its stated objective.

The writer is a lawyer.

Sahar Bandial, "Lacunae in the harassment law," The News. 2018-06-20.
Keywords: Social sciences , Social issues , Civil society , Sexual harassment , Sexual behaviour , Crimes , Education , Employment , Syed Mazhar Hussain , Islamabad , MLD